Kashmir – The Constitutional Provisions

The Indian Constitution which applies to whole of India, including the former Indian Princely States, contains 395 articles and ten schedules with 22 parts out of which Part I deals with the Union and its territory, Part V and VI deal with the Union and the States, part VII used to deal with the B Category States which included Jammu and Kashmir, later repealed by the Constitutional Seventh Amendment Act 1956, and Part VIII deals with the Union Territories.

The State of Jammu and Kashmir was represented by Sheikh Mohammed Abdullah , Mirza Afzal Beg , Maulana Mohammed Syed Masoodi and Moti Ram Baigra in the Constituent Assembly of India.

To understand the position of Jammu and Kashmir State vis-a-vis the Constitution of India, it may be of help to first take a look on some articles of the Indian Constitution that have a bearing upon the Centre and State relations especially the J&K State.

Article 1*

  1. Name and territory of the Union *-  India , that is Bharat, shall be a Union of States.
  2. The States and the territories thereof shall be as specified in the first schedule **
  3. The territory of India shall comprise –

a) the territories of the State ***

b) the union territories specified in the first schedule and ,****

c) such other territories as may be acquired.

The Constitution of India (As on Ist Nov 88), Diglot Ed, Rajbhasha Khand, Vidhaye Vibhag, Vedhi aur Nyaya Mantralaya, New Delhi

** Substituted by Constitution (Seventh Amendment ) 1956, Sec 2 for cl (2)

*** First schedule lists the States as under.

I. The State…….

(15)  Jammu and Kashmir : The territory which immediately before the commencement of this constitution was           comprised of the State of Jammu and Kashmir.

**** Substituted by S.2 ibid for sub clause (b)

Article 370+

Temporary provisions with respect to the State of Jammu and Kashmir –

  1. Notwithstanding  anything in the constitution ,

a) the provisions of article 238# shall not apply in relation to the State of Jammu and Kashmir;

b) the power of Parliament to make laws for the said State shall be limited to –

(i) those matters in the Union list and the concurrent list which in consultation with the Government of the State , are declared by the President to correspond to matters specified in the instrument of Accession governing the accession of the State to the Dominion of India as the matters with respect to which the dominion legislature may make laws for the State; and;

(ii) such other matters in the said lists, as with the concurrence of the Government of the State, the President may by order specify.

(Explanation; for the purpose of this article, the Government of the State means the person for the time being recognised by the President as the Maharaja of Jammu and Kashmir acting on the advice of the Council of Ministers for the time being in office under the Maharaja’s proclamation dated the fifth day of March 1948)

c) the provisions of article 1 and this article shall apply in relation to that State;

d) such of the other provisions of this constitution shall apply only in relation to that State subject to such exceptions and modifications as the President may by order specify; $

provided that no such order which relates to the matters specified in the instrument of Accession of the State referred to in the Paragraph of such clause (b) shall be issued except in consultation with the Government of the State;

provided further that no such order which relates to matters other than those referred in the last preceding proviso shall be issued except with the concurrence of the Government.

2.If the concurrence of the Government of the State referred to in paragraph (ii) of sub clause (b) of clause (1) or in the second proviso to the sub clause (d) of that clause be given before the Constituent Assembly for the purpose of framing the Constitution of the State is convened, it shall be placed before such Assembly for such decision as it may take thereon;

3. Notwithstanding anything in the foregoing provisions of this article , the President may by public notification, declare that this article shall cease to be operative or shall be operative only with such exceptions and modifications and from such date as he may specify, provided that the recommendations of the Constituent Assembly of the State referred to in clause  (2) shall be necessary before the President issues such a notification.@

+ In exercise of the powers conferred by this article the President , on the recommendations of the Constituent Assembly of the State of Jammu and Kashmir declared that as from the 17th day of November 1952, the said article 370 shall lbe operative with the modification that for the explanation in clause (1) thereon the following explanation is substituted. 

Explanation; For the purpose of this article the Government of the State means the person for the time being recognised by the President on the recommendations of the Legislative Assembly of the State as the Sadre -Riyasat (now , “Governor”- Min of Law  order no C044 dt 15 Nov 52) of Jammu and Kashmir, acting on the advice of the Council of Ministers of the State for the time being in office.”

# part VII, Article 238 – Omitted by the Constitution (Seventh Amendment) Act 1956.

$ See The Constitution (Application to J&K) Order 1954 (C.048) as amended from time to time.

@ ref Durga Das Basu; Shorter Constitution of India; 10th ed.,1988 Prentice hall, New Delhi. (also see below)

Article 1 and its bearing on Union and States;

Explanation of Article 1 is given by Durga Das Basu@ as under:

Clause (1) Union of States, The Union is a federal Union – with a distribution of powers of which Judiciary is the interpreter.

Clause (2) Membership of the Union and the territory of India . The Constitution will extend to any territory which comes within the scope of the expression ‘territory of India’ as defined in clause (3) of the present article.

(a) The ‘States”, and they are members of ‘the Union of States’ referred in clause (1). As in 2011 they are 28 in number.

(b) ‘The Union Territories ‘ are 7 in number as in 2011.

(c) Any territory that may be acquired by India at any time . Thus Goa, Daman and Diu acquired from the Portuguese by annexation, were being administered since 20-12 61 as acquired territory until they were incorporated as a Union Territory , under schedule 1 by the Constitution (twelfth Amendment) Act 1962.

Difference in Status between the States and Union Territories;

(a) Since the Constitution (Seventh Amendment ) Act 1956, there is no distinction between the States inter se. All of them belong to one class and barring Jammu and Kashmir  (for which special provisions are maintained, see under Article 370, post), all provisions of the constitution which are applicable to the States are applicable to them alike, and the provisions of Part VI form the Constitution of all the States.

Application to the State of Jammu and Kashmir;

Article 1 applies to the state of Jammu and Kashmir [Article 370 (1) (c)]. But though the State of Jammu and Kashmir thus became a State in Part B , the provisions in Part VII of the Constitution relating to States in Part B were not applicable to the State.{Prem Nath vs State of J&K, A.1959 SC 749}. Jammu and Kashmir has been allowed to have its own Constitution.[ vide C5, Vol 7,p1288, Acts Rules and Orders vol I p1288]

           

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